Atterberry v. Colvin
MEMORANDUM OPINION AND ORDER entered that the decision of the Commissioner of Social Security denying plaintiff benefits be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings not inconsistent with this decision. Signed by Magistrate Judge William E. Cassady on 8/24/2016. (eec)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking
judicial review of a final decision of the Commissioner of Social Security denying her
claims for disability insurance benefits and supplemental security income. The parties
have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28
U.S.C. § 636(c), for all proceedings in this Court. (Docs. 21 & 23 (“In accordance with the
provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case consent to
have a United States Magistrate Judge conduct any and all proceedings in this case, . . .
order the entry of a final judgment, and conduct all post-judgment proceedings.”).)
Upon consideration of the administrative record, plaintiff’s brief, the Commissioner’s
brief, and the arguments of counsel at the August 17, 2016 hearing before the Court, it is
determined that the Commissioner’s decision denying benefits should be reversed and
remanded for further proceedings not inconsistent with this decision.1
Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Docs. 21 & 23 (“An appeal from a
judgment entered by a Magistrate Judge shall be taken directly to the United States Court of
Appeals for this judicial circuit in the same manner as an appeal from any other judgment of
this district court.”))
Plaintiff alleges disability due to chronic obstructive pulmonary disease
(“COPD”), degenerative disc disease of the lumbar spine, obesity, and borderline
intellectual functioning. The Administrative Law Judge (ALJ) made the following
The claimant meets the insured status requirements of the Social
Security Act through December 31, 2015.
The claimant has not engaged in substantial gainful activity since
August 22, 2010, the alleged onset date (20 CFR 404.1571 et seq., and
416.971 et seq.).
The claimant has the following severe impairments: chronic
obstructive pulmonary disease (COPD), lumbar degenerative disc
disease, and obesity (20 CFR 404.1520(c) and 416.920 (c)).
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to perform
nearly the full range of light unskilled work as defined in 20 CFR
404.1567(b) and 416.967(b). She should never climb ladders, ropes or
scaffolds and only occasionally stoop, squat, or crawl. She should have
no exposure to unprotected heights.
The claimant underwent a second consultative medical exam on
December 3, 2013 performed by Andre Fontana, M.D. Dr. Fontana
reviewed the claimant’s treatment history and performed a clinical exam
that included range of motion, strength, and reflex testing. Dr. Fontana
noted that the claimant had an excellent heel-toe gait and negative straight
leg raises. She had some discomfort in the back cause[d] by range of
motion testing of the hip and had a reduced range of motion in the lumbar
spine to 30 degrees flexion, 5 degrees extension and 10 degrees bilaterally.
Dr. Fontana noted that x-rays of the claimant’s lumbar spine were normal
other than possible slight spondylolisthesis at L5-S1. Dr. Fontana opined
that the claimant can lift up to 25 pounds occasionally and 10 pounds
frequently and that she can sit, stand or walk for up to eight hours in an
eight-hour workday. She has no limitation is using her hands or feet. She
should never climb and only occasionally bend, squat, or crawl and
frequently reach. She should have no exposure to unprotected heights.
Great weight is assigned to the opinion of Dr. Fontana because his opinion
is very credible as a non-treating source. His opinion is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is
consistent with the other substantial evidence in the claimant’s case
The claimant has demonstrated sufficient impairment severity, via the
medical evidence of record and reduced level of activities of daily living,
to establish an inability to work beyond the light level of exertion. The
claimant’s residual functional capacity assessment is supported by the
objective medical evidence, the opinions of the reviewing and consultative
examiners, and the claimant’s treatment history. No greater or additional
limitations are justified.
The claimant is unable to perform any past relevant work (20
CFR 404.1565 and 416.965).
The claimant was born on June 15, 1968 and was 42 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).
The claimant has a limited education and is able to communicate
in English (20 CFR 404.1564 and 416.964).
Transferability of job skills is not material to the determination
of disability because applying the Medical-Vocational Rules directly
supports a finding of “not disabled,” whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,
The claimant’s additional restrictions of never climbing ladders, ropes, or
scaffolds, no exposure to unprotected heights and only occasionally
stooping, squatting, or crawling do not significantly erode the
occupational base (SSR 83-14 and 85-15). Further, the GRID rules
contemplate and allow for the claimant’s limitation to unskilled work, as
the jobs considered by the grid rules are all unskilled.
Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20 CFR
404.1569, 404.1569(a), 416.969, and 416.969(a)).
In determining whether a successful adjustment to other work can be
made, the undersigned must consider the claimant’s residual functional
capacity, age, education, and work experience in conjunction with the
Medical-Vocational Guidelines, 20 CFR Part 404, Subpart P, Appendix 2. If
the claimant can perform all or substantially all of the exertional demands
at a given level of exertion, the medical-vocational rules direct a
conclusion of either “disabled” or “not disabled” depending upon the
claimant’s specific vocational profile (SSR 83-11). When the claimant
cannot perform substantially all of the exertional demands of work at a
given level of exertion and/or has nonexertional limitations, the medicalvocational rules are used as a framework for decisionmaking unless there
is a rule that directs a conclusion of “disabled” without considering the
additional exertional and/or nonexertional limitations (SSRs 83-12 and 8314). If the claimant has solely nonexertional limitations, section 204.00 in
the Medical-Vocational Guidelines provides a framework for
decisionmaking (SSR 85-15).
Based on a residual functional capacity for nearly the full range of light
work, considering the claimant’s age, education, and work experience, a
finding of “not disabled” is directed by Medical-Vocational Rule 202.18.
The claimant has not been under a disability, as defined in the
Social Security Act, from August 22, 2010, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).
(Tr. 20, 22, 23, 26 & 27 (internal citations omitted; most emphasis in original but some
The Appeals Council affirmed the ALJ’s decision (Tr. 1-4) and thus, the
hearing decision became the final decision of the Commissioner of Social Security.
In all Social Security cases, an ALJ utilizes a five-step sequential evaluation
to determine whether the claimant is disabled, which considers: (1)
whether the claimant is engaged in substantial gainful activity; (2) if not,
whether the claimant has a severe impairment; (3) if so, whether the
severe impairment meets or equals an impairment in the Listing of
Impairments in the regulations; (4) if not, whether the claimant has the
RFC to perform her past relevant work; and (5) if not, whether, in light of
the claimant’s RFC, age, education and work experience, there are other
jobs the claimant can perform.
Watkins v. Commissioner of Social Sec., 457 Fed. Appx. 868, 870 (11th Cir. Feb. 9, 2012)2
(per curiam) (citing 20 C.F.R. §§ 404.1520(a)(4), (c)-(f), 416.920(a)(4), (c)-(f); Phillips v.
Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004)) (footnote omitted). The claimant bears the
burden, at the fourth step, of proving that she is unable to perform her previous work.
Jones v. Bowen, 810 F.2d 1001 (11th Cir. 1986). In evaluating whether the claimant has
met this burden, the examiner must consider the following four factors: (1) objective
medical facts and clinical findings; (2) diagnoses of examining physicians; (3) evidence
of pain; and (4) the claimant’s age, education and work history. Id. at 1005. Although “a
claimant bears the burden of demonstrating an inability to return to her past relevant
work, the [Commissioner of Social Security] has an obligation to develop a full and fair
record.” Schnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted). If a
plaintiff proves that she cannot do her past relevant work, as here, it then becomes the
Commissioner’s burden—at the fifth step—to prove that the plaintiff is capable—given
her age, education, and work history—of engaging in another kind of substantial
gainful employment that exists in the national economy. Phillips, supra, 357 F.3d at 1237;
Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999), cert. denied, 529 U.S. 1089, 120 S.Ct.
1723, 146 L.Ed.2d 644 (2000); Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir. 1985).
The task for the Magistrate Judge is to determine whether the Commissioner’s
decision to deny claimant benefits, on the basis that she can perform “nearly the full
range of light work” and is “’not disabled’” under Grid Rule 202.18, is supported by
substantial evidence. Substantial evidence is defined as more than a scintilla and means
such relevant evidence as a reasonable mind might accept as adequate to support a
“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.” 11th Cir.R. 36-2.
conclusion. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). “In
determining whether substantial evidence exists, we must view the record as a whole,
taking into account evidence favorable as well as unfavorable to the Commissioner’s]
decision.” Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).3 Courts are precluded,
however, from “deciding the facts anew or re-weighing the evidence.”
Astrue, 370 Fed. Appx. 995, 996 (11th Cir. Apr. 1, 2010) (per curiam) (citing Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)). And, “’[e]ven if the evidence
preponderates against the Commissioner’s findings, [a court] must affirm if the decision
reached is supported by substantial evidence.’” Id. (quoting Crawford v. Commissioner of
Social Security, 363 F.3d 1155, 1158-1159 (11th Cir. 2004)).
On appeal to this Court, Atterberry asserts four reasons why the Commissioner’s
decision to deny her benefits is in error (i.e., not supported by substantial evidence): (1)
the ALJ erred in relying on the grids at the fifth step of the sequential evaluation
process; (2) the ALJ erred in failing to include borderline intellectual functioning as a
severe impairment and in failing to incorporate the impacts of borderline intellectual
functioning in the balance of the sequential evaluation process; (3) the ALJ erred in
failing to include limitations identified by Dr. Fontana (e.g., occasional bending) into his
RFC determination; and (4) the ALJ’s RFC determination is inconsistent with the severe
impairments found in this case. Because the undersigned finds that the ALJ erred to
reversal with respect to plaintiff’s first assignment of error, the Court has no reason to
address plaintiff’s other assignments of error. See Pendley v. Heckler, 767 F.2d 1561, 1563
This Court’s review of the Commissioner’s application of legal principles,
however, is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
(11th Cir. 1985) (“Because the ‘misuse of the expert’s testimony alone warrants reversal,’
we do not consider the appellant’s other claims.”).4
This is a step five case (Tr. 26-27) and it has long been recognized in this circuit
that the Commissioner of Social Security must develop “a full and fair record regarding
the vocational opportunities available to a claimant.” Allen v. Sullivan, 880 F.2d 1200,
1201 (11th Cir. 1989) (citation omitted). The Commissioner must articulate specific jobs
that the claimant can perform given her age, education and work history, if any, “and
this finding must be supported by substantial evidence, not mere intuition or
conjecture.” See id. (citation omitted). One means by which the Commissioner meets
this burden is by reliance on the medical-vocational guidelines (“grids”). Id. at 12011202 (citations omitted). Exclusive reliance upon the grids is inappropriate, however,
“‘”either when the claimant is unable to perform a full range of work at a given residual
functional level or when a claimant has a non-exertional impairment that significantly
limits basic work skills.”’” Id. at 1202 (quoting Walker v. Bowen, 826 F.2d 996, 1002-1003
(11th Cir. 1987), in turn quoting Francis v. Heckler, 749 F.2d 1562, 1566 (11th Cir. 1985)).
Normally, when non-exertional limitations are alleged “the preferred method of
demonstrating that the claimant can perform specific work is through the testimony of a
vocational expert.” MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir. 1986); see Francis,
749 F.2d at 1566 ("The preferred method of demonstrating job availability when the
grids are not controlling is through expert vocational testimony"). “‘It is only when the
claimant can clearly do unlimited types of light work . . . that it is unnecessary to call a
vocational expert to establish whether the claimant can perform work which exists in
The undersigned would simply suggest that it is never unwise for an ALJ, on
remand, to give some consideration to the errors identified by a plaintiff on appeal to the
the national economy.’” Allen, 880 F.2d at 1202 (quoting Ferguson v. Schweiker, 641 F.2d
243, 248 (5th Cir. Unit A March 30, 1981)); see also Foote v. Chater, 67 F.3d 1553, 1559 (11th
Cir. 1995) (“If the grids are inapplicable, the Secretary must seek vocational expert
testimony.”). Where non-exertional impairments are present “[t]he ALJ must ‘“make a
specific finding as to whether the non-exertional limitations are severe enough to
preclude a wide range of employment at the given work capacity level indicated by the
exertional limitations.”’” Foote, supra, 67 F.3d at 1559 (citations omitted). “If
nonexertional impairments exist, the ALJ may use Medical-Vocational Guidelines as a
framework to evaluate vocational factors, but must also introduce independent
evidence, preferably through a vocational expert’s testimony, of existence of jobs in the
national economy that the claimant can perform.” Wilson v. Barnhart, 284 F.3d 1219, 1227
(11th Cir. 2002), citing Wolfe v. Chater, 86 F.3d 1072, 1077-1078 (11th Cir. 1996).
In Phillips, supra, the Eleventh Circuit reiterated its earlier holding that
“‘[e]xclusive reliance on the grids is not appropriate either when [the] claimant is unable
to perform a full range of work at a given residual functional level or when a claimant
has non-exertional impairments that significantly limit basic work skills[,]” and held
that “[i]f either condition exists, the ALJ [is] required to consult a vocational expert.” 357
F.3d at 1242 (emphasis in original; citation omitted). The Phillips court expounded at
some length on the foregoing two conditions. Id. at 1242, 1242-1243 & 1243.
The first condition that requires the ALJ to consult a vocational
expert is when the claimant’s exertional limitations prevent the claimant
from performing a full range of employment.5 This Court has interpreted
a “full range of employment” as being able to do “unlimited” types of
work at the given exertional level.
“Exertional limitations affect an individual’s ability to meet the seven strength
demands of the job: sitting, standing, walking, lifting, carrying, pushing, and puling.” Phillips,
357 F.3d at 1242 n.11, citing SSR 96-4.
If the ALJ concludes that [the claimant] cannot perform a full range
or unlimited types of work at the [light] level given her exertional
limitations, then the ALJ must consult a vocational expert to determine
whether there are sufficient jobs at the [light] work level within the
national economy that [the claimant] can perform. If, however, the ALJ
concludes that [the claimant] can perform a full range or unlimited types
of work at the [light] level despite any exertional limitations, the ALJ next
must determine to what extent [the claimant’s] nonexertional limitations
affect her ability to secure employment at the [light] work level in the
When determining to what extent [the claimant’s] nonexertional
limitations affect her ability to secure employment in the national
economy,6 the test is slightly different. When considering [the claimant’s]
nonexertional limitations, the ALJ need only determine whether [the
claimant’s] nonexertional impairments significantly limit her basic work
skills. This Court has interpreted “significantly limit basic work skills” as
limitations that prohibit a claimant from performing “a wide range” of
work at a given work level.
If the ALJ determines that [the claimant’s] nonexertional limitations
do not significantly limit her basic work skills at the [light] work level,
then the ALJ may rely on the grids to determine if [the claimant] is
disabled. If, however, the ALJ determines that [the claimant’s]
nonexertional limitations significantly limit her basic work skills at the
[light] work level, then the ALJ must consult a vocational expert.
Id. (internal citations and most footnotes omitted; emphasis in original).
“Nonexertional limitations or restrictions affect an individual’s ability to meet
the other demands of jobs and include mental limitations, pain limitations, and all physical
limitations that are not included in the seven strength demands.” Phillips, 357 F.3d at 1242 n.11,
citing SSR 96-4. The Commissioner’s regulations set forth examples of nonexertional limitations,
as follows: “(i) You have difficulty functioning because you are nervous, anxious, or depressed;
(ii) You have difficulty maintaining attention or concentrating; (iii) You have difficulty
understanding or remembering detailed instructions; (iv) You have difficulty in seeing or
hearing; (v) You have difficulty tolerating some physical feature(s) of certain work settings, e.g.,
you cannot tolerate dust or fumes; or (vi) You have difficulty performing the manipulative or
postural functions of some work such as reaching, handling, stooping, climbing, crawling, or
crouching.” 20 C.F.R. § 404.1569a(c)(i)-(vi) (2016).
In consideration of these two conditions, initially it is clear to this Court that the
first sentence of the ALJ’s finding number 5 is directed to exertional limitations given
the direct reference to the definition of unskilled light work contained in 20 C.F.R. §§
404.1567(b) and 416.967(b) (Tr. 23) and the fact that the definition of light work finds as
its reference points the seven strength demands of jobs, compare, e.g., 20 C.F.R. §
404.1567(b) (2016) (“Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Even though the
weight lifted may be very little, a job is in this category when it requires a good deal of
walking or standing, or when it involves sitting most of the time with some pushing
and pulling or arm or leg controls. To be considered capable of performing a full or
wide range of light work, you must have the ability to do substantially all of these
activities.”) with Phillips, supra, 357 F.3d at 1242 n.11 (“Exertional limitations affect an
individual’s ability to meet the seven strength demands of the job: sitting, standing,
walking, lifting, carrying, pushing, and pulling.”). In that first sentence, the ALJ
specifically found that Atterberry retained the “residual functional capacity to perform
nearly the full range of light unskilled work as defined in 20 CFR 404.1567(b) and
416.967(b).” (Tr. 23 (some emphasis supplied).) The ALJ, however, did not explain what
he meant by “nearly” the full range of light work and, without any explanation, this
Court concludes that this determination constitutes a finding by the ALJ that Atterberry
cannot, from an exertion standpoint, perform a full range or unlimited types of work at
the light level. See Fleming v. Commissioner of Social Security, 2011 WL 4114955, *7 (M.D.
Fla. Sept. 15, 2011) (ALJ found the claimant could perform a “’minimally reduced range of
light work,’” and the district court determined that “[b]y finding Fleming can only
perform a reduced range of light work, the ALJ necessarily found Fleming cannot
perform an unlimited range of that category of work.”). Given that the ALJ, by his own
words, found Atterberry cannot perform a full range or unlimited types of work at the
light level given her exertional limitations, the ALJ should have consulted one of the
vocational experts present at one of the two administrative hearings conducted in this
case (compare Tr. 34 & 48-49 (October 31, 2013 hearing) with Tr. 53 & 79-80 (March 6,
2014 hearing)) to determine whether there are sufficient jobs in the national economy
that Atterberry can perform in light of her impairments and limitations. See Phillips,
supra, 357 F.3d at 1242 (“If the ALJ concludes that [the claimant] cannot perform a full
range or unlimited types of work at the [light] level given her exertional limitations,
then the ALJ must consult a vocational expert to determine whether there are sufficient
jobs at the [light] work level within the national economy that [the claimant] can
In addition to the foregoing, the Court notes that the second condition that
requires consultation of a vocational expert is when the claimant’s nonexertional
impairments significantly limit basic work skills. Phillips, 357 F.3d at 1243; see also id.
(“This Court has interpreted ‘significantly limit basic work skills’ as limitations that
prohibit a claimant from performing ‘a wide range’ of work at a given work level.”).
And while this Court need not reach this issue, given the previous determination
concerning the existence of the first condition, the undersigned chooses to reach this
issue since it provides further reason for a remand for vocational expert testimony. In
regard to Atterberry’s nonexertional limitations, the second and third sentences of the
ALJ’s finding number 5 are of import, as follows: “She should never climb ladders,
ropes or scaffolds and only occasionally stoop, squat, or crawl. She should have no
exposure to unprotected heights.” (Tr. 23.) There is no question but that the foregoing
restrictions are nonexertional limitations, compare Marbury v. Sullivan, 957 F.2d 837, 839
(11th Cir. 1992) (recognizing that an inability to work around unprotected heights or
dangerous machinery is a nonexertional limitation) with Blake v. Colvin, 2014 WL 109113,
*3 (M.D. Fla. Jan. 10, 2014) (restrictions to only occasionally climbing ladders, ropes, or
scaffolds, balance, stoop, kneel, crouch or crawl are nonexertional limitations), and
though the ALJ specifically found these additional restrictions did not “significantly
erode the occupational base” (Tr. 27, Finding No. 9, citing SSRs 83-14 & 85-15), this
Court agrees with the Blake court, supra, that “Social Security Rulings do not have the
force of law and are not binding on the courts[,]” id. at *4, citing Miller v. Commissioner of
Social Security, 246 Fed.Appx. 660, 662 (11th Cir. Aug. 31, 2007); see also id.
(“Furthermore, Social Security Ruling 85-15 acknowledges that the services of a
vocational expert may be necessary when the effects of an individual’s limitations are
uncertain.”), as are Eleventh Circuit decisions like Marbury, supra. Id. And, given the
determination in Marbury that vocational expert testimony was needed, it being evident
that the “claimant was not able to do unlimited types of light work” since “he was
precluded from work around unprotected heights or dangerous moving machinery[,]”
957 F.2d at 839 (emphasis in original); see also id. (“An ALJ’s conclusion that a claimant’s
limitations do not significantly compromise his basic work skills or are not severe
enough to preclude him from performing a wide range if light work is not supported by
substantial evidence unless there is testimony from a vocational expert.”), the
undersigned can reach no other conclusion but that the ALJ in this case erred in relying
exclusively on the grids and in failing to obtain the testimony of one of the two
vocational experts who appeared before him (see Tr. 48-49 & 79-80) concerning the jobs
that the plaintiff could perform in the national economy with his limitations, it being
evident that plaintiff’s nonexertional restrictions (that is, no ability to climb ladders,
ropes, or scaffolds; an ability to perform only occasional stooping, crawling, or
crouching; and an inability to be exposed to unprotected heights) preclude Atterberry
from performing unlimited types (or a wide range) of light work and thereby
significantly limit her basic work skills. See Blake, supra, at *4.
In light of the foregoing, it is ORDERED that the decision of the Commissioner
of Social Security denying plaintiff benefits be reversed and remanded pursuant to
sentence four of 42 U.S.C. § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157,
115 L.Ed.2d 78 (1991), for further proceedings not inconsistent with this decision. The
remand pursuant to sentence four of § 405(g) makes plaintiff a prevailing party for
purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412, see Shalala v. Schaefer, 509
U.S. 292, 112 S.Ct. 2625, 125 L.Ed.2d 239 (1993), and terminates this Court’s jurisdiction
over this matter.
DONE and ORDERED this the 24th day of August, 2016.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE
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